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PRINCIPLE 3
Stick to Your Guns
After the automatic machine recount mandated by statute was complete (which
occurred due to the less than one-half of 1 percent margin between the candidates),
the Gore campaign filed a protest by petitioning for manual recounts in four
heavily Democratic counties only: Palm Beach, Miami-Dade, Broward, and Volusia.
By statute, the canvassing boards could grant such a request by ordering a sample
recount that had to "include at least three precincts and at least 1 percent
of the total votes cast" for the candidate who had petitioned for the recount,
or on whose account a political party had made such a request. If the sample
recount indicated "an error in the vote tabulation which could affect the
outcome of the election," the canvassing boards were required to choose
from three options, one of which was a manual recount of all ballots cast in
that county.
As these four cherry-picked counties completed their sample recounts, questions
arose concerning whether the results of those sample recounts showed "an
error in the vote tabulation which could affect the outcome of the election,"
so as to require these counties to choose one of the three courses of action.
Two counties, Broward and Palm Beach, requested advisory opinions from my Division
of Elections on this matter.
Section 106.23(2) of the Florida Statutes authorizes the Division of Elections
to issue opinions upon such requests and states that "the opinion, until
amended or revoked, shall be binding on any person or organization who sought
the opinion or with reference to whom the opinion was sought." The division's
opinion was crystal-clear, based on the language of the protest statute. "An
error in the vote tabulation" occurred when a vote counting machine failed
to count a properly marked ballot. "An error in the vote tabulation"
did not refer to circumstances involving voter error, in which a vote counting
machine had refused to tabulate an incorrectly marked ballot.
The division's opinion did not state that manual recounts designed to correct
voter error could not occur at all. The opinion did not preclude the possibility
that a court could properly order such manual recounts as part of a contest
proceeding. The opinion merely indicated that manual recounts to correct voter
error were not permissible during the protest phase.
U.S. Court of Appeals Judge and University of Chicago Law School Senior Lecturer
Richard A. Posner, in his book on the recount controversy, Breaking the Deadlock,
agrees with the Division of Elections' rationale in this matter. He reasons,
"Voter error is not tabulator error; the voter is not the tabulator of
the vote." He argues that the Florida Supreme Court's "mistaken interpretation
of 'error in the vote tabulation'" drove its decision extending the deadline
for counties to certify their final results from November 14 to November 26.
While the Florida Supreme Court held that an irreconcilable conflict existed
between the protest statute's November 14 deadline and its provision for manual
recounts (which, presumably, would take longer), Judge Posner states,
If, as the election officials ruled, ["error in the vote tabulation"]
refers only to a breakdown of the tabulating process¾[meaning that]
unspoiled ballots have not been counted¾the hand recount should not
take much time at all. It will be obvious at a glance which candidate received
the vote on those ballots. Judgment, interpretation, disagreement, objection,
challenge, and resulting delay come into play only when, because the ballot
was spoiled, the voter's intention is an enigma.
Judge Posner continues,
The only thing that could make the seven-day period for the submission
of a county's votes unreasonably short (other than extraordinary circumstances
such as fraud or some natural disaster) would be a desire to recover spoiled
ballots as votes, a process that is time-consuming because of its subjectivity.
In the exercise of her discretion to interpret and apply the statute, the
secretary of state was entitled to conclude that wanting to recover votes
from ballots spoiled by the voter was not a proper reason for the extension
of the statutory deadline¾especially in a Presidential election, in
which delay in certifying the results of the election could cause chaos.
Ultimately, our opinion regarding the type of recounts Florida law permitted
diverges from Judge Posner's thesis; we disagree with his argument that the
Florida Supreme Court did not have the authority to order a statewide recount
to remedy voter error, even in the contest proceeding. Nevertheless, his thorough,
incisive reasoning provides welcome support for the Division of Elections' advisory
opinion, which we have always known to be correct, but which has been the subject
of misplaced and misinformed scorn and ridicule
When the four-justice majority of the Florida Supreme Court ordered a belated
statewide recount on December 8 (without declaring uniform counting standards,
which we had requested the court to declare weeks earlier in a motion that the
court denied), they capped a stunning month-long display of judicial gymnastics.
Our system of governance is based upon a balance of power amongst our three
branches of government: the executive, the legislative, and the judicial. By
law these branches are mandated to perform separate duties. The executive branch
administers the law; the legislative branch writes the law; and the judicial
branch interprets the law. When the four-justice majority of the Supreme Court
joined their three dissenting colleagues to issue the court's first ruling,
which extended the deadline for submission of county returns and delayed certification
until November 26 (thereby writing new law, not interpreting the law), they
abandoned traditional judicial decorum, chiding me for being too much of a stickler
about the law-as if this trait somehow constituted a defect in character. They
said, "The will of the people, not a hyper-technical reliance on statutory
provisions, should be our guiding principle in election cases." They ruled
that certification constituted such a significant event, with such momentous
implications for Al Gore's ability to obtain a "full and fair" (for
only four Democratic majority counties) manual recount, that they had no choice
but to legislate from the bench and change the law.
Once this ruling had transformed the legislature's orderly process for settling
election disputes into a chaotic free-for-all, this four-justice majority of
the Florida Supreme Court reversed themselves, deciding in their December 8
decision that certification meant nothing. They added uncertified recount totals
that Palm Beach County submitted after the new deadline the court had created
to the totals the Elections Canvassing Commission certified on November 26.
They added partial recount returns to the certified total that Miami-Dade County
never even submitted.
When the damage had already been done to the cause of an orderly, fair statewide
recount, the four-justice majority finally agreed with what my office had told
them just before they eviscerated the November 14 deadline: that certification
operated merely as a procedural milepost between the protest and contest phases
of a cohesive legislative plan to settle election disputes. Certification had
no impact on any person's right to pursue a manual recount of any sort or scope.
To their everlasting credit, the dissenters to the December 8 decision, Chief
Justice Charles Wells, Justice Leander Shaw, and Justice Major Harding, remained
consistent. I did not agree with their prior decision to move the November 14
deadline to November 26, but I immensely respected their courage as they stood
fast in their convictions while the other four justices flip-flopped.
Justice Shaw issued a statement that echoes my feelings about this controversy.
In his concurring opinion to the court's order dismissing Al Gore's contest
pursuant to the directions of the U.S. Supreme Court, Justice Shaw stated as
follows:
Both the search for the truth and the right to vote are of paramount importance,
but they are circumscribed by a higher, overarching concern-the general welfare
of our democracy. The general welfare is informed by our law. The law infuses
the fabric of our society and breathes life into all our legal principles.
Inherent in the law are the basic concepts of fairness, reliability, and predictability,
and the constitutional safeguards of due process and equal protection were
designed to promote these interests
the preservation of the right to vote are worthy goals, they cannot be achieved
in a manner that contravenes these principles.
I was determined throughout the entire recount controversy to stand fast and
firm on an immutable principle of American justice: the rule of law. I could
not allow circumstances to alter this conviction, even though I knew I confronted
a no-win situation. When I was assailed in the press, when I was besieged with
lawsuits, when I was hammered by special-interest groups, and when I was mocked
by pundits and late night comedians, I felt that my first and foremost duty
was to cling to my convictions, do my job, follow the law, and stick to my guns.
The rule of law, after all, is an essential aspect of American liberty.
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